DSOUZA J Vs. A JOSEPH

JUDGEMENT

(1.) This appeal is preferred against the judgement and decree dated 16-8-1984 passed by the VIII Addl. City Civil Judge, Bangalore City, in O. S. No. 2243/1980. By the said judgement, the learned Addl. City Civil Judge decreed the suit of the plaintiff for permanent injunction restraining the defendant from interfering with plaintiff's peaceful possession of the suit schedule property. Being aggrieved by the said judgement, defendant J. D'souza has preferred this appeal.

(2.) It appears, plaintiff-respondent A. Joseph died on 3-4-1991. I may point out here that Sri K. N. Bhat appearing for Sri Sreekantegowda in the companion matter submitted that there is no dispute about the death of A. Joseph. The advocate for the appellant, in the light of the aforesaid development, has filed a memo as under :

(3.) I have heard Sri Prabhakar, learned counsel for the appellant. Sri Sreekantegowda, learned counsel though could not represent the deceased respondent, was heard by the Court on the point of law since he has appeared for the deceased respondent in another appeal namely RFA 134/89. The point for consideration is as to whether the appeal abates or the suit itself abates, on account of the death of the respondent in this case. As pointed out hereinabove, there is no dispute as regards the date of death of the respondent. Sri Prabhakar, appellant's counsel submitted that the decree in question is an injunction decree obtained by the deceased plaintiff-respondent against the defendant-appellant and that, on the death of the deceased plaintiff, the decree would wither away. In other words, what is submitted by Sri Prabhakar is that a decree for injunction does not run with the land and that it is personal to the person who has obtained the decree and that therefore, on the death of the decree-holder, the decree would also die and that the question of the legal representative of the deceased executing the decree under O. 21, R. 32 does not arise at all. It is pointed out by Sri Prabhakar that, under these circumstances, the order in terms of the memo filed by him for the appellant deserves to be passed. Sri Prabhakar, appellant's counsel has invited the attention of this Court to the decision in Basavant Dundappa v. Shidalingappa Sidaraddi reported in ILR 1986 Kar 1959; the decision in Girijanandini Devi v. Bijendra Narain Choudhary reports in AIR 1967 SC 1124 : (1967 All LJ 478), the decision in Chandrup Singh v. Data Ram reported in AIR 1983 Punj 1; and the decision in Cheranellur Co-operative Society Ltd. v. Deputy Registrar reported in AIR 1977 Kerala 76. Learned counsel also invited the attention of this Court to certain passages reflected in pages 572 and 573 in Nelsons Law of Injunction.